Sawyer v Ahsan
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 July 1999 |
| Date | 14 July 1999 |
| Court | Employment Appeal Tribunal |
Discrimination - Employment - Authorisation or qualification - Applicant de-selected as Labour Party councillor - Whether Labour Party “body” able to confer “authorisation” needed for “engagement in particular profession” -
The applicant, a member of a local council, was not re-adopted as a candidate by the local executive committee of the Labour Party. He made a complaint to an employment tribunal that by failing to reselect him the Labour Party had discriminated against him on racial grounds contrary to sections 1 and 12 of the Race Relations Act 1976.F1 On a preliminary issue the employment tribunal found that holding the office of councillor amounted to “engagement in a particular profession” for the purposes of section 12(1) and that the Labour Party was a body which could “confer an authorisation or qualification” which was needed for, or facilitated, such engagement. Accordingly, they held that they had jurisdiction to hear the complaint.
On appeal by the Labour Party: —
Held, dismissing the appeal, (1) that the Labour Party, an unincorporated association whose members were bound to one another in contract, came within the intendment of the word “body” in section 12(1) of the Race Relations Act 1976; that, given “profession” as defined in section 78(1) of the Act included vocation or occupation, being a councillor was capable of involving “engagement in a … profession” for the purposes of section 12(1); that, since selection as the candidate involved “recognition” in the campaign and on the voting papers of his being the Labour Party candidate, the Labour Party was conferring on a candidate an “authorisation or qualification,” as defined by section 12(2)(a); and that such recognition or approval was “needed” for engagement in the “particular” occupation of being a Labour councillor (post, pp. 7E–8C, 12D–E).
(2) That, although Part II of the Race Relations Act 1976, which included section 12, was headed “Discrimination in the employment field” and a councillor was not employed under a contract of employment but was an office holder, it did not refer only to discrimination by employers, nor to “employment” in the limited sense defined in section 78(1), so that section 12 was wide enough to confer jurisdiction on the tribunal to hear the applicant's claim (post, pp. 10A–C, 11A–B, 12D, 18H–19B).
The following cases are referred to in the judgment:
Arthur v. Attorney-General [
Booth-Clibborn v. United Kingdom (
British Judo Association v. Petty [
Glimmerveen v. The Netherlands (
Jepson v. The Labour Party [
Jones v. Tower Boot Co. Ltd. [
Kelly v. Northern Ireland Housing Executive [
M. and H. (Minors) (Local Authority: Parental Rights), In re [
Malik v. Post Office Counters Ltd. [
Mathieu-Mohin v. Belgium (
Pepper v. Hart [
Reg. v. Immigration Appeal Tribunal, Ex parte Bernstein [
Savjani v. Inland Revenue Commissioners [
Tattari v. Private Patients Plan Ltd. [
No additional cases were cited in argument.
Interlocutory appeal from an employment tribunal sitting at Birmingham.
By an originating application dated 26 February 1998, the applicant, Mr. Raghib Ahsan, made a complaint of unlawful discrimination on the ground of race against Mr. Tom Sawyer, the general secretary of the Labour Party. The respondent was subsequently amended to “Tom Sawyer on his own behalf and on behalf of all other members of the Labour Party.” By a decision promulgated on 25 August 1998, the tribunal, on a preliminary issue, held that they had jurisdiction to hear the complaint. On 24 September 1998, the respondents appealed on the ground that the tribunal had erred in their construction of section 12 of the Race Relations Act 1976.
The facts are stated in the judgment.
James Goudie Q.C. and Tom Restrick for the Labour Party.
Robin Allen Q.C. for the applicant.
14 July. The following judgment of the appeal tribunal was handed down.
Lindsay J. In 1991 the applicant, Mr. Ahsan, even then, as now, a long standing member of the Labour Party, was elected at a by-election to be a member of Birmingham City Council to represent the Sparkhill ward. It has been said that the Sparkhill ward is a safe Labour ward. The applicant is a Muslim of Pakistani origin. In May 1994 he was re-elected on the Labour ticket for a further four-year term. In the run up to the local government elections of May 1998 he sought re-adoption by the Labour Party in order to stand once again as the Labour candidate for the Sparkhill ward. On 21 December 1997 he was told that he had been unsuccessful; the West Midlands Regional Executive Committee of the Labour Party selected instead a white male who, says the applicant, had neither any previous experience as a local councillor nor any close connection with the Sparkhill ward. On 26 February 1998, the applicant lodged his form of complaint — his originating application — to the industrial tribunal claiming racial discrimination. At that early stage the only respondent was Tom Sawyer, the general secretary of the Labour Party. On 24 March 1998 the respondent, describing itself as “The Labour Party,” lodged its notice of appearance. It took the point that it did not employ the applicant and asserted that a preliminary hearing should be arranged to deal with the applicability of section 12 of the Race Relations Act 1976, a section which the applicant, who had until then been acting in person, had mentioned in his originating application. On 25 March 1998, solicitors for the applicant asserted that his claim was, inter alia, under section 12.
2. By 21 May 1998, the applicant had obtained the support of the Commission for Racial Equality and on 2 July 1998 the chairman of the industrial tribunal confirmed to the parties the nature of the questions which were to be the subject matter of a preliminary hearing. That hearing took place before Mr. S. Williams, chairman, Mrs. G. M. Deane and Mr. G. Drew, on 6 and 8 July 1998. By the time of the hearing the respondents had become “Tom Sawyer on his own behalf and on behalf of the all other members of the Labour Party.” On 25 August 1998 the tribunal's decision was sent to the parties. The section the decision was concerned with, section 12 of the Race Relations Act 1976, provides:
“(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person — (a) in the terms on which it is prepared to confer on him that authorisation or qualification; or (b) by refusing, or deliberately omitting to grant, his application for it; or (c) by withdrawing it from him or varying the terms on which he holds it. (2) In this section — (a) ‘authorisation or qualification’ includes recognition, registration, enrolment, approval and certification; (b) ‘confer’ includes renew or extend. (3) Subsection (1) does not apply to discrimination which is rendered unlawful by section 17 or 18.”
3. The tribunal's unanimous decision, which accurately reflects the questions which had been framed to be dealt with at the preliminary hearing, was:
“(1) Holding the office of councillor on Birmingham City Council amounts to engagement in a profession within the meaning of section 12 of the Race Relations Act 1976; (2) the Labour Party is a body which can confer an authorisation or qualification which is needed for, or facilitates, such engagement; (3) accordingly, the industrial tribunal has jurisdiction to entertain the applicant's claim. And it is further ordered that this application be relisted to be heard on its merits.”
On 24 September 1998 Tom Sawyer, as appellant on his own behalf and on behalf of all other members of the Labour Party, lodged a notice of appeal. It will be convenient to describe the appellant as the “Labour Party.” The industrial tribunal had had before it a statement of agreed facts for the preliminary hearing and beyond that there was some oral evidence, more by way of brief supplement, we are told, than of any contentious nature.
4. We cannot over-emphasise that at this stage there has been no examination whatsoever of whether the Labour Party has, in relation to the applicant, done anything at all on racial grounds. That will become material only if the Labour Party's appeal as to jurisdiction fails at this or at whatever higher or highest level to which the question is taken.
5. The tribunal set out in closely argued extended reasons the grounds for the conclusions at which it had arrived. Mr. Goudie, who appears, as he did below, for the Labour Party, identifies three broad issues of law raised by the appeal, namely, firstly, whether the West Midlands Regional Executive Committee of the Labour Party, by refusing or deliberately omitting to select the applicant or by withdrawing from him its earlier approval, was refusing or withdrawing an “authorisation or qualification” within the meaning of section 12. Secondly, whether that committee or the Labour Party was an “authority or body” within the meaning of section 12. Thirdly, whether holding office as, or being elected to the office of, a local government councillor generally or a Labour councillor in...
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